More words from open government lawyer Terry Francke
I got an email this morning from Terry Francke, general counsel of Californians Aware. CalAware advocates for the public's access to government records within the Golden State. With The Sun, I've worked with them on a pair of audits that were used to test how well California's law enforcement agencies work with members of the general public who go to their local police and sheriff's stations seeking data.
Francke took issue with the way I characterized a case in my recent story on Joseph Turner's effort to obtain records from San Bernardino. Turner, who recently worked as a consultant for the San Bernardino Police Officers Association, sought voluminous records from the city. City Attorney James F. Penman wanted to charge Turner nearly $2,000 for documents, claiming that the difficulty of restoring electronic files justifies the bill.
Penman cited American Civil Liberties Foundation v. Deukmejian, a 1982 case, to argue that case law would have been allowed the city to deny Turner's request because of the work required to provide the sought-after records.
Francke disagreed with the way in which the case was presented in my article, here's his entire response:
The original article is posted after the jump:
Public records dust-up in San Bernardino
Author: Andrew Edwards, Staff Writer
SAN BERNARDINO - Joseph Turner, a local figure who has managed to find himself involved in some of the city's biggest controversies of the past couple of years, is now in a disagreement with the City Attorney's Office over a gargantuan Public Records Act request.
Turner, who until recently worked as a political consultant for the San Bernardino police union, filed multiple public records requests in August and September for copies of key officials' e-mails and any lawsuits related to a police lieutenant.
Some of the records were provided, but when Turner visited City Attorney James F. Penman at Penman's office in late August to view some of the provided e-mails, the two men had an argument.
Turner said that after leaving Penman's sixth-floor office at City Hall, he was handcuffed by a police officer in the city's parking structure.
"Make no mistake, I was detained," Turner said.
Penman said he called police when Turner returned the following morning and another argument ensued. Penman said a city attorney's investigator escorted Turner out. Turner said he left voluntarily.
Turner's requests came in the wake of summer's Operation Phoenix controversies that followed community center manager Mike Miller's arrest on suspicion of child molestation. Turner was still working for the police union when the rank-and-file's dispute with Police Chief Michael Billdt became public.
In regard to the e-mails, Penman demanded that Turner shell out more than $1,800 to pay the costs of having IT staffers restore the records. Turner argues that Penman was way out of line.
To Turner, asking for a such a hefty sum is an "obviously prohibitive cost" that serves to discourage any member of the public from investigating City Hall affairs.
Penman's response is that Turner's requests went well beyond what's reasonable and would have so burdened city employees that staffers would not have been able to serve other residents.
The problem, Penman said, is that some of the records desired by Turner are not in the city's possession. Some of the hard drives where the requested e-mail records are stored are in the custody of the sheriff's crime lab because they were taken as evidence.
"If a request is made that is so burdensome it's going to tax the city's resources, the city can just say no," Penman asserted.
And that's where the law comes in. Although government agencies are generally prohibited from charging requestors anything more than the direct cost of copying records, two experts contacted by the The Sun had differing views of Turner's situation.
Californians Aware general counsel Terry Francke said Penman is wrong to charge Turner nearly $2,000 for records. He cited an opinion issued for a 1984 case, North County Parents Organization v. Department of Education, in which an appellate judge wrote that agencies cannot charge people for the costs of searching for requested records.
But Penman said Turner's request entailed more work than just a routine search through City Hall's file cabinets or computers.
"Some of the information, IT thought they could reproduce, but it would be expensive to do so," Penman said. "It would have been thousands and thousands and thousands of pages."
In a 1982 case, American Civil Liberties Union Foundation v. Deukmejian, the state Supreme Court ruled that the effort needed to provide certain law enforcement records would be so burdensome that in consideration of the fact that legally confidential information would have had to have been deleted from the documents that nondisclosure was justified.
Penman referred to that case while arguing that his office was right in asking Turner to pony up the money.
California First Amendment Coalition Executive Director Peter Scheer did not refer to the ACLU case but allowed that officials could be justified in charging fees if finding an electronic record would be difficult and costly.
"If there is a situation where they would have to spend time constructing data from various places ... it's not clear exactly where the line is," Scheer said.
In demanding Turner pay, Penman is "at least taking a position that may be plausible," he added.
andrew.edwards@inlandnewspapers.com
(909) 386-3921
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